PETITIONER:
STATE OF ORISSA
Vs.
RESPONDENT:
KHAGESWAR DAS AND OTHERS
DATE OF JUDGMENT12/08/1975
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
ALAGIRISWAMI, A.
GOSWAMI, P.K.
CITATION:
1975 AIR 1906 1976 SCR (1) 300
1975 SCC (2) 553
ACT:
Orissa Industries Service Rules 1971, r. 3(1)(ii)-If
violative of Art. 16 Constitution of India.
HEADNOTE:
Rule 3(1)(ii) of the Orissa Industries Service Rules,
1971, provided that the junior grade of the service shall
include the posts of Deputy Directors, Senior lecturers in
Engineering, Schools etc. besides the posts of Principal,
Engineering Schools (except Mining Engineering) and
Polytechnics which carry a special scale of pay.
The 1st respondent was appointed a lecturer in a Mining
Engineering School. In 1960, the School was brought under
the administrative Control of the Industries Department of
the State Government, and the respondent became an officer
of the Industries Department. Later. he was appointed
Principal of the School. In 1964, there was a bifurcation of
the common cadre of the Department, and a separate cadre for
teaching posts of Engineering Schools in the State was
created. In 1967, the two cadres were again merged forming a
combined cadre for the officers of the Industries
Department. The reason given for the merger was that the
separate cadre for teachers was not beneficial to them
because, promotion prospects for them were bleak in view of
the limited posts available for promotion. After the merger,
in 1969, even though the 1st respondent was senior to the
2nd respondent, the latter was promoted as Joint Director
superseding the former.
The High Court quashed the order and struck down r.
3(1)(ii) as violative of Art. 16.
Dismissing the appeal to this Court,
^
HELD: (1) In the resolution of 1967 merging the two
cadres it was stated that the conditions of service of all
the officers will be governed by a set of cadre rules to be
framed later, but no such rules were framed at the time of
promotion of the 2nd respondent. The 1971-rules were framed
during the pendency of the writ application, filed by the
1st respondent, in the High Court. There was, therefore, at
the time of promotion of the 2nd respondent, nothing to show
that the post of a teacher or the Principal of a Mining
Engineering School WAS treated as an ex-cadre post and on a
separate footing for the purpose of promotion to the
administrative posts. [303G-H]
(2) Rule 3(1)(ii) when it says in the first part Senior
lecturers in Engineering Schools, it includes senior
lecturers of Mining Engineering School also. Even when the
two cadres were separated, all Engineering Schools including
Mining Engineering Schools were placed on the SAME Footing.
But, in the last part of the rule when referring to the post
of Principal, the Principal of a Mining Engineering School
is excluded. The exclusion is without any justification or
reasonable basis. [304E-H]
Therefore, the rule is violative of Arts. 14 and 16 and
the non-consideration of the case of the 1st respondent at
the time of promotion of the 2nd respondent was wholly
arbitrary and illegal. [33H; 304H]
(3) It is however not necessary to strike down the
entire rule 3(1)(ii). It is sufficient if the words 'except
Mining Engineering' are struck down and deleted. [304H]
301
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 254 (N)
of 1974.
Appeal by special leave from the judgment and order
dated the 30th November, 1972 of the High Court of Orissa in
O.J.C. No. 129 of 1970.
Gobind Das and B. Parthasarathi, for the appellant.
B. P. Maheshwari and Suresh Sethi, for respondent No.
1.
The Judgment of the Court was delivered by
UNTWALIA, J.-The State of Orissa has preferred this
appeal by special leave from the judgment and order of the
High Court passed in Writ Petition filed by respondent No.
1. Respondent No. 2 was appointed by promotion to the post
of Joint Director of Industries, Government of Orissa in
supersession of the claim of respondent No. 1. The High
Court has quashed the said order and directed the appellant
to consider the case of respondent No. 1 for promotion to
the post of Joint Director according to his seniority in the
combined cadre formed by Resolution dated 2-10-1967. Rule
3(1) (ii) of the Orissa Industries Service Rules, 1971 has
been struck down as being violative of Article 16 of the
Constitution of India.
Respondent No. 1 was appointed as a lecturer in Mining
in the Orissa School of Mining Engineering? Keonjhargarh on
6-2-1960. The said School was brought under the
administrative control of the Industries Department of the
Government of Orissa in pursuance of a Resolution dated 18-
2-1960. The service of respondent No. 1 thereupon stood
transferred under the administrative control of the
Industries Department with effect from 21-3-1960. The post
of the lecturer in the Mining Engineering School was
upgraded by order of the State Government made in August,
1960. The petitioner was brought into the common cadre of
the Industries Department of Government of Orissa and while
he was so continuing, he was appointed as Principal of the
Mining Engineering School. The provisional appointment made
was regularized by the Industries Department by a
notification dated 19-12-1962, a copy of which was Annexure
D/2 to the Writ application. This notification clearly shows
that at that time respondent No. l was treated as an officer
of the Industries Department.
Then came a Resolution of the Government dated 21-4-
1964. The common cadre of the Industries department was
bifurcated into two. A separate cadre was created for
teaching posts of Engineering Schools in Orissa including
the Mining Engineering School. Respondent No. 1 exercised
his option to remain in the teaching cadre of the Industries
Department.
As per Resolution of the Government dated 2-10-1967 the
two separate cadres in the Industries Department were again
amalgamated and merged into one. Consequently the cadre of
the teaching staff of the Engineering Schools including the
Mining Engineering School and that of the administrative
state became a single combined cadre.
6-L 839 Sup Cl/75
302
Even then respondent No. I was not considered for promotion
to the post of Joint Director when respondent No. 2 who was
junior to him was promoted to the post. Feeling aggrieved by
the non-consideration of his case for promotion, respondent
No. 1 filed the writ application in the year 1970. During
the pendency of the writ application, the Governor of Orissa
framed the orissa Industries Service Rules, 1971-hereinafter
called the Rules, under proviso to Article 3()9 of The
Constitution. Respondent No. 1 amended his writ application,
1 made out a case of discrimination in the framing of the
Rules and attacked them as being violative of Articles 14
and 16 of the Constitution.
In paragraph S of the counter filed by the appellant
the formatio of a combined cadre by Resolution dated 2-10-
1967 was admitted. But it was asserted that in spite of the
merger of the two cadres into one the intention of the
Government was to treat the post of the Principal cf a
Mining Engineering School as an ex-cadre post under the
Industries Department. The Mining Engineers were excluded
from the junior grade of service under the Industries
Department in accordance with the Rules of 1971. Earlier
also, respondent No. 1 got class I post out of turn treating
him as belonging to ex-cadre post.
The High Court has come to the conclusion that before
21-4-1964 there were no separate cadres for the teaching and
the administrative staff of the Industries Department. The
cadre was one. It was bifurcated in 1964 and the two
bifurcated cadres were again united and merged into one on
and from 2-10-1967. There was, therefore, no justification
at all in not considering the case of respondent No. 1 for
promotion to the post of Joint Director as all persons in
the combined cadre eligible for promotion had to be
considered. Respondent No. 1 was senior to respondent No. 2
in the combined cadre and yet his claim was ignored on a
ground which was not substantiated. The relevant rule was
discriminatory and had no reasonable nexus with the object
of the- Rules.
The judgment of the High Court was handed down on the
30th November, 1972-long before the issuance of the
notification dated 27th June, 1975 by the President of India
under Article 359(1) of the Constitution. The rule was
declared ultra vires on the ground of J violation of
Articles 14 and 16. The State of orissa was the appellant
before us. It was, therefore, agreed on all hands that this
appeal was not a proceeding pending in this Court for the
enforcement of the right under Article 14 of the
Constitution and was, therefore, not suspended. The
enforcement of the right was made by the delivery- of the
High Court judgment and the State merely wanted in this
appeal a deletion of that enforcement.
Mr. Gobind Das, learned counsel for the appellant,
submitted that the posts of the teachers in the Mining
Engineering School in Orissa including the posts of the
Principal have always been treated as ex-cadre posts in the
Industries Department. The teachers and the Principal of the
Mining Engineering School were not considered for promotion
to the posts of Administrative Department because few
persons
303
were available to man the posts in the Mining Engineering
School. It was because of this reason that the case of
respondent No. 1 was not considered and the Rules were also
framed with that object in view. In any view of the matter,
counsel submitted, that the whole of Rule 3(1) (ii) ought
not to have been declared as void and only the offending
portion ought to have been struck down.
The main part of the argument put forward on behalf of
the appellant does not stand scrutiny and must be rejected.
It could not be seriously disputed that respondent No. 1 was
an officer of the Industries Department and appointed to the
post of the Principal of the Mining Engineering School in
that Department. There is nothing to indicate that the post
of the Principal or of the teacher of any Engineering School
or of the Mining Engineering School was an ex-cadre post.
Then came the Resolution date(l 21st April, 1964. The new
scales of pay were fixed for the teachers in Engineering in
The Engineering Schools including the Mining Engineering
School in the State of Orissa The contention of Mr Das that
this fixation of scales was only for the Engineering Schools
and not for Mining Engineering School is not correct.
Clearly all Engineering Schools were placed on the same
looting and paragraph 3 of` this Resolution runs as follows:
“The teaching posts in Engineering Schools which
till now were included in common cadre with other posts
in the Directorate of Industries will be placed in a
separate cadre to which the above scale of pay will
apply.
Then came the merger resolution after about three years
on the 2nd October, 1967 a copy of which was Annexure I to
the writ application. The subject of the notification,
Annexure l, is ”formation of a combined cadre for the
officers of the Industries Department”. It was clearly
mentioned hl This notification that after the teaching posts
were placed in a separate cadre “it was felt that the
promotion prospects would be bleak due to the formation of a
separate cadre for teachers in view of the limited posts
available for promotion”. Hence formation of separate cadre
for teachers was considered not to be beneficial to them. So
the combined cadre was brought into force with effect from
the date of the issue of the Resolution dated 2nd October,
1967 in supersession of the earlier decision to have a
separate cadre for teachers. Lastly it was stated in this
Resolution “The conditions of service of all the officers
will be governed by a set of cadre rules to be framed later
on”. No rules were framed until the framing of the Rules in
1971. As against a categorical statement in the Resolution
dated 2-10-1967 there was nothing whatever to show that the
post of a teacher or the Principal in the Mining Engineering
School was treated as an ex-cadre post and on a separate
footing for the purpose of promotion to the administrative
posts. The non-consideration of the case of respondent No. 1
at the time respondent No. 2 was promoted to the post of
Joint Director in or about the year 1969 was wholly
arbitrary, unjustified and illegal. The High Court was right
in making the order which it did on the writ application of
respondent
304
As against the purpose and object of the merger of the
cadre mentioned in the Resolution dated 2-10-1967 we find
Rule 3 of the Rules going contrary to them. Rule 9(1) of the
Rules says:
“Promotions to the posts of Senior grade in Class
I shall be made from among the members of the Junior
grade in Class I :”
Constitution of the service is provided in Rule 3. We
are concerned with Rule 3(1). It reads as follows:
“3 ( 1 ) The cadre of the service shall consist of
two branches, viz., Class I and Class ii, the former
comprising two grades, viz., the Senior grade and the
Junior grade, as indicated below:-
(i) The Senior grade shall include posts of Joint
Directors and officers of equivalent status
as may be declared by Government from time to
time.
(ii) The Junior grade shall include the posts of
Deputy Directors, Senior Lecturers in
Engineering Schools and such other posts as
may be declared by Government from time to
time to be of equivalent status, besides the
posts of Principal. Engineering Schools
(except Mining Engineering) and Polytechnics
which carry a special scale of pay.
Clause (ii) of the Rules when it says in the first part
that the “junior grade shall include the posts of Deputy
Directors, Senior Lecturers in Engineering Schools” it means
clearly Senior Lecturers in Engineering Schools not
excluding Mining Engineering School. But in the last part
when in the junior ;grade were included the posts of
Principals, Engineering Schools by the words “except Mining
Engineering” given in the parenthesis, the post of the
Principal of the Mining Engineering School was excluded. It
was so done during the pendency of the writ application of
respondent No. 1 and without any reasonable and sound basis
for making a discrimination a propos the post of the
Principal of the Mining Engineering School. We find no
justification for making the distinction in the junior grade
of Class I service in the case of the Principal of Mining
Engineering School. The rule in that regard has rightly been
held to be violative of Articles 14 and 16 of the
Constitution by the High Court. But striking down of the
whole of clause (ii) of Rule 3(1) of the Rules was not
necessary. Only the words in parenthesis had to be deleted
and struck down on that account. That would serve
305
the purpose of making the posts of Principal of all
Engineering Schools including the Mining Engineering School
being the posts in the junior grade, Class I.
For the reasons stated above, we find no merit in this
appeal. It is accordingly dismissed but subject to the
clarification made above with costs payable to respondent
No. 1.
V.P.S. APPeal dismissed.
306